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November 18, 1977


The opinion of the court was delivered by: WARD


 These two related actions have been brought by citizens and taxpayers of the Villages of Scarsdale and Larchmont and the Town of Mamaroneck ("plaintiffs") against their respective municipalities ("the public defendants") and against two unincorporated associations, comprised of representatives from various churches in Scarsdale and Larchmont ("the private defendants"). *fn1" Plaintiffs seek declaratory judgments that the practices of the public defendants of authorizing the private defendants or, in the case of the Town of Mamaroneck, other private parties, to place a nativity scene or "creche" on public land at Christmas time results in the unconstitutional establishment of religion. *fn2" Injunctions are also sought prohibiting both the public defendants and the private defendants from erecting creches on publicly owned land. *fn3"

 Plaintiffs have predicated their right to bring these cases in federal court on 28 U.S.C. § 1331(a), federal question jurisdiction, *fn4" and on 28 U.S.C. § 1343(3), *fn5" the jurisdictional counterpart of 42 U.S.C. § 1983. *fn6" Both the public defendants and the private defendants contend that the Court lacks subject matter jurisdiction over plaintiffs' claims. In addition, the public defendants and one of the private defendants *fn7" have moved and plaintiffs have cross-moved for summary judgment, pursuant to Rule 56, Fed. R. Civ. P. For the reasons hereinafter stated, the amended complaints are dismissed for lack of subject matter jurisdiction.

 The Claims Against the Public Defendants

 As municipal corporations, the public defendants are not "persons" amenable to suit under § 1983. Hence, jurisdiction cannot be premised on § 1343. City of Kenosha v. Bruno, 412 U.S. 507, 37 L. Ed. 2d 109, 93 S. Ct. 2222 (1973); Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961).

 The Court also concludes that jurisdiction is lacking under § 1331, as plaintiffs have not met that section's jurisdictional amount requirement.

 In 1976 Congress amended § 1331 to abolish the amount in controversy requirement in suits against the United States, federal agencies, and federal officials. Act of October 21, 1976, Pub. L. No. 94-574, § 2, 90 Stat. 2721. However, it declined the invitation to abolish the requirement entirely, thus, leaving it operative in a small class of cases, including suits against municipalities. *fn8"

 The legislative history indicates that the impetus behind the statutory amendment was the need to provide litigants with a federal forum to enforce federal rights. House Report, supra at 15-16. The need was acute in suits against federal officials, as it was feared that state courts were powerless to enjoin such officers' action taken under color of federal law. House Report, supra at 15. *fn9" Faced with this inequity, some courts were circumventing the jurisdictional amount question *fn10" or avoiding it altogether. Comment, The Jurisdictional Amount in Controversy in Suits to Enforce Federal Rights, 54 Texas L. Rev. 545, 574-88 (1976) [hereinafter cited as Texas Note]. Such an approach was unsatisfactory to Congress because it "[abdicated] a court's constitutional and statutory duties 'to ensure that each case before it falls within the limited jurisdictional power of the federal judiciary.'" It also "[added] to the confusion surrounding the requisite . . . especially in the lower courts, and [fostered] arbitrary and haphazard application of jurisdictional standards.'" House Report, supra at 17 n.51, quoting Texas Note, supra at 585.

 While it is not entirely clear why Congress declined to abolish the amount in controversy requirement in toto,11 it is true that the need for reform was less pressing in suits against municipalities than in cases against federal officials. Firstly, since a municipality is an entity of the state, not of the federal government, state courts should be able to enforce injunctions against them effectively. Secondly, by suing appropriate municipal officers in their official capacities for an injunction under § 1983, plaintiffs are in a position to obtain in federal court substantially the same relief under existing statutory law as is sought in an injunction action against a municipality.

 The Court concurs in the view that litigants should have the opportunity to redress important federal rights in a federal forum. Therefore, should there be any significant respect in which a § 1983 suit could not duplicate the relief sought against a municipality itself, the Court would deem the jurisdictional gap unfortunate. However, so long as the amount in controversy requirement remains a prerequisite in § 1331 cases against municipalities, for courts to uphold jurisdiction would require the same type of circumvention or avoidance which Congress found unsatisfactory in suits against federal officials. The Court declines to perpetuate such a practice and its attendant problems. If present alternatives for adjudication of claims against municipalities are insufficient, it is for Congress, not for the courts, to remedy the situation. Accordingly, plaintiffs' claims against the public defendants are dismissed for lack of subject matter jurisdiction.

 The Claims Against the Private Defendants

 Plaintiffs have asserted that jurisdiction exists under 28 U.S.C. § 1343(3) with regard to their claims against the private defendants. In essence, their contention is that the private defendants, acting under color of state law, deprived plaintiffs of their right to freedom from the establishment of religion *fn12" in violation of § 1983.

 Although, in most instances, only public entities and officials are capable of acting under color of law, it is clear that the acts of private parties as "'willful [participants] in joint activity with the State or its agents'" may also constitute state action for purposes of § 1983. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150-52, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970), quoting United States v. Price, 383 U.S. 787, 794, 16 L. Ed. 2d 267, 86 S. Ct. 1152 (1966). However, it has been uniformly held that private defendants cannot act under color of state law on the basis of conspiracy or joint activity with the state or its agents if the governmental entities or officials with whom they are alleged to act in concert are themselves immune from liability under the statute. Hansen v. Ahlgrimm, 520 F.2d 768, 770-71 (7th Cir. 1975); Sykes v. California Department of Motor Vehicles, 497 F.2d 197, 202 (9th Cir. 1974); Hill v. McClellan, 490 F.2d 859, 860 (5th Cir. 1974); Guedry v. Ford, 431 F.2d 660, 664 (5th Cir. 1970); Brown v. Dunne, 409 F.2d 341, 343-44 (7th Cir. 1969); Haldane v. Chagnon, 345 F.2d 601, 604-05 (9th Cir. 1965); Dennis v. Hein, 413 F. Supp. 1137 (D.S.C. 1976); Stambler v. Dillon, 302 F. Supp. 1250, 1255 (S.D.N.Y. 1969); Jemzura v. Belden, 281 F. Supp. 200, 206 (N.D.N.Y. 1968); see Reilly v. Doyle, 483 F.2d 123, 128-29 (2d Cir. 1973). But cf. Grow v. Fisher, 523 F.2d 875, 877-78 (7th Cir. 1975).

 In the instant case, plaintiffs have attempted to cloak the private defendants' actions with the authority of state law on the ground that they acted in concert with the respective public defendants. The public defendants, however, are not "persons" within the meaning of § 1983 and thus are immune from suit under that statute. City of Kenosha v. Bruno, 412 U.S. 507, 37 L. Ed. 2d 109, 93 S. Ct. 2222 (1973); Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961); Sykes v. State of California Department of Motor Vehicles, 497 F.2d 197, 201 (9th Cir. 1974). As a result of this immunity, it is not possible that the private defendants acted under color of state law on the basis of joint activity with the public defendants. Accordingly, plaintiffs have failed to state claims under § 1983 and the Court lacks jurisdiction under § 1343. *fn13"

 Plaintiffs fare no better in premising jurisdiction on 28 U.S.C. § 1331. As the Court has discussed with regard to plaintiffs' claims against the public defendants, plaintiffs have failed to meet the jurisdictional amount requirement of § 1331. Furthermore, since the Establishment Clause prohibits only governmental action, and plaintiffs have pointed to no other law or treaty which proscribes private parties from conducting the activities involved herein, plaintiffs' claims against the private defendants do not meet the "arising under" requirement of § 1331.

 For the foregoing reasons, the amended complaints are dismissed. *fn14"

 It is so ordered.

 Dated: November 18, 1977


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